Craft v. Trahan

• Decision Date: 17 October 1977
• Docket Number: No. 6124,6124
• Citation: 351 So.2d 277
• Parties: Catherine Ann Young CRAFT et al., Plaintiffs-Appellants, v. Leroy TRAHAN et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 277

351 So.2d 277

Catherine Ann Young CRAFT et al., Plaintiffs-Appellants, v. Leroy TRAHAN et al., Defendants-Appellees.

No. 6124.

Court of Appeal of Louisiana, Third Circuit.

Oct. 17, 1977.

Rehearing Denied Nov. 10, 1977.

Neblett & Fuhrer by Leonard Fuhrer, Edward E. Roberts, Alexandria, for plaintiffs-appellants.

Stockwell, Sievert, Viccellio, Clements & Shaddock by Fred H. Sievert, Jr., Raggio, Farrar, Cappel & Chozen, Fred L. Cappel, Lake Charles, Arnett & George, Gregory Arnette, Jr., Jennings, Stafford, Randow, O'Neal & Smith, Harry F. Randow, Alexandria, Brame, Bergstedt & Brame by Joe A. Brame, Lake Charles, H. O. Lestage, III, DeRidder, for defendants-appellees.

Leroy Trahan, pro se.

Before HOOD, CULPEPPER and GUIDRY, JJ.

HOOD, Judge.

Mrs. Catherine Ann Young Craft, individually and as natural tutrix of her two minor children, claims damages for the death of her husband, David Lee Craft, who was killed when a truck he was driving collided with a truck being driven by Leroy Trahan. The suit was instituted against Trahan and a number of other defendants, two of them being Empire Indemnity Insurance Company and Empire Fire and Marine Insurance Company, both of which companies are referred to collectively herein as "Empire." A summary judgment was rendered rejecting plaintiff's claims against Empire insofar as those claims are based on the allegation that Trahan was an insured of Empire. Plaintiff appealed.

The issues presented are (1) whether Leroy Trahan was an "insured" under a policy of insurance issued by Empire covering the truck Trahan was driving, and (2) whether the rendering of a summary judgment is appropriate or justified in this instance.

The accident occurred on May 10, 1975, on U. S. Highway 190, in Calcasieu Parish, Louisiana. Leroy Trahan was driving an International truck owned by Sears Truck Line, Inc., of Jasper, Texas, east on that highway. Plaintiff's husband was driving a Chevrolet log truck west on the same thoroughfare. The two vehicles collided and Craft died of the injuries which he received as a result of that collision.

At the time the accident occurred, there were in effect two automobile liability policies issued by Empire to Sears, one of which covered the truck which was being driven by Trahan. The principal issue presented in this case is whether Trahan was an "insured" under that policy.

Sears owns and operates a fleet of trucks. It buys new and used trucks from Atterbery International, Inc., of Lake Charles, and it frequently engages Atterbery to make repairs on its trucks. Atterbery is a truck sales agency. It maintains a shop where it performs repair work on trucks, but it does not do any paint and body work at its shop. It generally subcontracts that work out to others, primarily to Mac's Paint and Body Shop, of Lake Charles.

Mac's Paint and Body Shop is engaged in the business of repairing motor vehicles, and it specializes in paint and body work on automobiles and trucks. Mac's is owned and operated by Leroy Trahan's son, Malcolm Trahan. Malcolm had been engaged in that business for about six months before the accident occurred, and he was relatively inexperienced in that kind of work. Leroy, on the other hand, has had many years of experience in repairing automobiles and trucks. Although Leroy is not employed regularly by Mac's, Malcolm uses his father to make estimates on jobs since Malcolm has had no experience at all in that part of the business. He also engages Leroy to do some types of work in the shop which Malcolm cannot perform, and he pays his father on a commission basis for the work which he does. He also lets Leroy use the shop, without charge, to do automobile and truck repair work which Leroy personally contracts to perform.

Shortly before the accident occurred, Sears informed Atterbery that it had some trucks which needed to be repaired. A representative of Atterbery thereupon told Sears that he would send someone to Jasper, Texas, to look at the trucks and to make an estimate as to the cost of making the repairs.

The representative of Atterbery then contacted Malcolm Trahan and requested that he go to Sears' place of business in Texas to look at the trucks which needed repairs and make an estimate of the costs which would be incurred in making them. The representative asked Trahan to drive an Atterbery truck to Texas and deliver it to Sears, and to pick up another truck which belonged to Atterbery and return it to Lake Charles. Malcolm agreed to make the trip, as requested, but he informed Atterbery's representative that he would have to take his father, Leroy, with him, because Leroy was the only person who was qualified to make the cost estimates. The arrangement was that the Trahans were to perform the repair work on the Sears truck or trucks in the event Sears decided to have that work done.

Malcolm and Leroy thereupon drove the Atterbery truck to Texas, as planned. While there, Leroy made estimates of the cost of performing the work which Sears wanted to have done. Sears then asked the Trahans to drive one of its trucks back to Lake Charles for repairs, as well as the Atterbery truck which was to be returned. The Trahans agreed to do that. Malcolm then drove the Atterbery truck, and Leroy drove the truck owned by Sears which was being taken to Lake Charles to be repaired. The accident occurred while the parties were en route to Lake Charles in those vehicles.

In this suit, plaintiff claims that Leroy Trahan was an omnibus insured under the policy issued by Empire to Sears covering the truck which Leroy was driving. The trial judge concluded that Leroy was not an insured under that policy, and he rendered a summary judgment rejecting plaintiff's demands against Empire. Plaintiff appealed, and it is that appeal which is before us now.

The policy which was issued by Empire to Sears, covering the truck which was being driven by Leroy Trahan, contained the following provision:

"III. Definition of Insured. (a) With respect to the insurance for bodily injury liability . . . the unqualified word 'insured' . . . also includes any person while using the automobile . . ., provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply: (1) to any person or organization, or to any agent or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof, . . ." (Emphasis added).

The trial judge did not assign reasons for judgment. He obviously found, however, that Leroy Trahan either was operating an automobile repair shop or was the agent or employee of a person who was operating such a shop, and that the accident arose out of the operation of that shop. If the evidence supports those findings, then we must agree with the court that the above exclusionary clause applies, and that Leroy is not an insured under the policy.

Plaintiff argues that the receivable evidence in the record does not support those factual findings. She claims, first, that the pick up and delivery of vehicles was not an integral part of the operation of Mac's Paint and Body Shop, and that the accident thus did not arise out of the operation of that business. Second, she contends that Leroy was not operating a repair shop and that he was not an agent or employee of Mac's repair shop at the time the accident occurred. She maintains that the above exclusionary clause does not apply, and that Leroy must be held to be an omnibus insured under the policy.

The established rule is that any doubt or ambiguity as to the meaning of a provision in an insurance policy must be construed liberally in favor of the insured and against the insurer. When the ambiguity relates to an exclusionary clause or to a provision which limits liability under the policy, the law requires that the contract be interpreted liberally in favor of providing coverage. Smith v. Ranger Insurance Company, 301 So.2d 673 (La.App. 3 Cir. 1974); Spain v. Travelers Indemnity Company, 321 So.2d 10 (La.App. 3 Cir. 1975).

The evidence presented at the trial of the motion for summary judgment in the instant suit consisted largely of the pertinent insurance policies and four depositions. We have considered the evidence and the issues presented with the above rules in mind.

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